Cole v. JW's Pub

• Court: New York Supreme Court — Appellate Division
• Citation: Cole v. JW's Pub, 2015 NY Slip Op 8703, 133 A.D.3d 815, 19 N.Y.S.3d 434(Mem) (N.Y. App. Div. 2015)
• Decision Date: 25 November 2015
• Parties: Kevin COLE, appellant, v. JW'S PUB, respondent, et al., defendant (and a third-party action).

133 A.D.3d 815

19 N.Y.S.3d 434 (Mem)

2015 N.Y. Slip Op. 08703

Kevin COLE, appellant,

v. JW'S PUB, respondent, et al., defendant(and a third-party action).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 25, 2015.

Brody O'Connor & O'Connor, Northport, N.Y. (Thomas M. O'Connor, Patricia A. O'Connor, and Tillie Mirman of counsel), for appellant.

McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place, N.Y. (Patricia M. Murphy and Michael Smarof counsel), for respondent.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much an order of the Supreme Court, Suffolk County (Garguilo, J.), dated May 2, 2014, as granted the motion of the defendant JW's Pub for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant JW's Pub for summary judgment dismissing the complaint insofar as asserted against it is denied.

On July 3, 2010, at approximately 12:30 a.m., the plaintiff was a patron at a tavern owned and operated by the defendant JW's Pub, when he allegedly was assaulted with a beer bottle by another patron of the tavern. The plaintiff commenced this action to recover damages for personal injuries, and JW's Pub moved for summary judgement dismissing the complaint insofar as asserted against it. The Supreme Court granted the motion.

JW's Pub failed to demonstrate its prima facie entitlement to judgment as a matter of law. Specifically, it failed to eliminate all triable issues of fact as to whether the assault on the plaintiff by another patron of JW's Pub was unforeseeable and unexpected (see Rishty v. DOM, Inc.,67 A.D.3d 662, 663, 888 N.Y.S.2d 151; Panzera v. Johnny's II,253 A.D.2d 864, 865, 678 N.Y.S.2d 336; cf. Kiely v. Benini,89 A.D.3d 807, 809, 932 N.Y.S.2d 181), or whether the assault reasonably could have been anticipated and prevented (see Solomon v. National Amusements, Inc.,128 A.D.3d 947, 947, 9 N.Y.S.3d 398; Rishty v. DOM, Inc.,67 A.D.3d at 663, 888 N.Y.S.2d 151; Boyea v. Aubin,65 A.D.3d 736, 737–738, 883 N.Y.S.2d 808; see also Bryan v. Crobar,65 A.D.3d 997, 999, 885 N.Y.S.2d 122). Since JW's Pub failed to demonstrate its prima facie entitlement to judgment as a matter of law, the Supreme Court should have been denied its motion for summary judgment without regard to the sufficiency of the opposition papers (see Winegrad v. New...